A Higher Standard Is Needed for College Sexual Assault Rulings

John Villasenor 1:07 PM

The Title IX tribunals that have proliferated on U.S. college campuses since 2011 have been enormously problematic.

By federal mandate, U.S. colleges and universities — if they want to maintain access to federal funds — must adjudicate accusations of sexual violence using the “preponderance of the evidence” standard: If a defendant is deemed more than 50 percent likely to have committed the accused act, he or she is declared guilty.

That means that even if the tribunal reviewing the evidence concludes there is a 49 percent chance that a defendant didnot engage in the accused conduct, he or she will still be pronounced guilty.

Even though this standard is used for civil trials, the burden of proof for regular criminal trials — which include sexual assault cases adjudicated in criminal courts — is much higher. Criminal convictions require establishing guilt “beyond a reasonable doubt.”

Even if a panel concludes there is a 49 percent chance that a defendant did not engage in the accused conduct, he or she will still be pronounced guilty.

In my research, I have found that innocent defendants face a significantly greater risk of being found guilty under preponderance of the evidence than under beyond a reasonable doubt. Qualitatively, that result is obvious, but the quantitative level of increased risk is far less obvious and much more sobering.

Proponents of using preponderance of evidence in campus Title IX tribunals argue that because colleges and universities don’t have the power to incarcerate those found guilty, the lower burden of proof is justified. This implies that false convictions of sexual assault in these proceedings aren’t as consequential to the accused. But consider the fate of an innocent defendant who is found guilty in a university Title IX proceeding, expelled from school and then publicly disparaged on social media as a perpetrator of sexual violence. What of the investment that was put into pursuing a degree that will now be wrongly withheld? And what will happen when this person attempts to re-enroll at another school, get a job, rent an apartment or run for political office?

In addition to the low burden of proof, campus Title IX proceedings have a glaring lack of due process. No justice system should be evaluated solely on the basis of how effectively it punishes the guilty. It is also crucial to consider the risks faced by the subset of defendants who are innocent.

‘Preponderance of Evidence’ Is the Correct Standard for College Sexual Violence Cases

Sexual violence often violates criminal laws but when students are the ones victimized, it also violates Title IX, one of the civil rights statutes that guarantees equal educational opportunity to all students in U.S. schools.

Schools cannot enforce criminal laws, but they do have responsibilities under Title IX. They can’t determine the guilt of those accused of criminal sex offenses, but they must address sexual violence — as a severe form of sexual harassment — when it affects their students.

Schools cannot enforce the criminal law, but they do have responsibilities under Title IX.

Therefore, most colleges and universities voluntarily rejected criminal standards of proof like the “clear and convincing evidence” and “beyond a reasonable doubt” standards long ago. Instead, they adopted the “preponderance of the evidence” or “more likely than not” standard of proof for all student disciplinary proceedings — and not just the sexual assault cases — well before the Department of Education issued its 2011 guidance. This is the standard that both Democratic and Republican administrations have consistently supported and enforced for decades.

Criminal standards would require evidence of a quantity and type that is virtually impossible for schools to access, as they lack court powers such as the subpoena which would compel the production of evidence. But more important for the protection of students, the preponderance standard itself is designed to be equal — it expects the victim and the accused to carry virtually equal evidentiary burdens (with the victim’s burden just slightly heavier than the accused’s).

Criminal law-based standards of proof make protecting the equal rights of all their students harder for schools because they require victims to carry a much heavier evidentiary burden than accused students — “stacking the deck” against them. This unequal treatment further compounds the discrimination experienced by victims, whose educations and lives have already been marred by trauma, fear and often, expensive consequences.

The consequence of treating students unequally, for schools, is more lawsuits and complaints to the federal government. In the past few years, students have filed over 200 complaints against their schools for sexual violence alone. They have also filed private lawsuits, with significant success. In the last 10 years alone, such actions resulted in three publicly disclosed seven-figurepayouts by schools and severalmore just below a million.

These events confirm that colleges and universities should voluntarily stick with the preponderance standard, not just because of our nation’s historical and moral commitment to equality but also for their own self-interest. It makes no rational sense for schools to select an evidentiary standard of proof that makes it harder to comply with Title IX’s equality goals and increases their risk for costly liability.